[2023] KECPT 762 (KLR)

Mutisya & 5 others v Munala & 3 others (Tribunal Case 742 of 2019) [2023] KECPT 762 (KLR) (Nairobi) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 762 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Nairobi

Tribunal Case 742 of 2019

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2023

Between

James Mutisya

1st Claimant

Sylvester Saburi Mwanzama

2nd Claimant

Hope Laura Lime

3rd Claimant

Benson Ololuoch Nyagol

4th Claimant

Peter Kanyi

5th Claimant

Christopher Musyoka Mutet

6th Claimant

and

Alphayo Chimwanga Munala

1st Respondent

Terence Bavon Minishi

2nd Respondent

Hazina Sacco Society Limited

3rd Respondent

Competition Authority Of Kenya

4th Respondent

Ruling

1. This Ruling dispenses with the 3rd Respondent’s Notice of Motion Application dated 27TH May 2021, and filed on 9th June 2021.

2. By its Notice of Motion, the 3rd Respondent seeks the following orders:a.That this Application to be certified as urgent and to be heard exparte in the first instance.b.That pending the hearing and determination of this Application, this Honourable Tribunal be pleased to stay the injunctive orders made on 4th March, 2021. c.That this Honourable Tribunal be pleased to discharge and/or set aside the Injunctive Orders made on 4th March, 2021. d.This Honourable Tribunal be pleased to review the orders dismissing the 3rd Respondent’s Application dated 23rd January 2020 and grant orders to stay the civil proceedings pending the hearing and determination of the criminal proceedings in Nairobi City Magistrate’s Court Criminal Case number 2066 of 2018, Republic versus Alphayo Chimwanga Munala and Terence Bavon Minishi.e.In the alternative, this Honourable court do hereby order for the maintenance of the status quo on maintenance of the Claimant’s deposits in terms of withdrawal and taking further loans against their deposits.f.The costs of this Application be provided for.

3. The Motion is supported by an Affidavit sworn by Dickon Okungu, the Chief Executive Officer of the 3rd Respondent.

Issues For Determination 4. The Application has presented the following issues for determination:i.Whether the Applicant has satisfied the court to set aside injunctive orders issued on 4th March 2021ii.Whether the Applicant has satisfied the court to set aside orders dismissing the application dated 23rd January 2020

Analysis 5. Grounds on the face of the application are that the Injunctive Orders granted by the Tribunal on 4th March 2021 have plunged the 3rd Respondent into immense hardship. The 3rd Respondent is also afraid that if the Injunction Orders stay in force, the Claimants might tamper with their shares. Also, in the event that the Claimants resign from their place of work, the 3rd Respondent will be unable to attach their shares and dividends.

6. The jurisdiction of the court to set aside an order of injunction is outlined under order 40 rule 7 Civil Procedure Rules, 2010 which provides as follows:“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”In granting the injunction, the Tribunal was guided by the principles set out in Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358 where it was stated: -“First, an Applicant must show a prima facie case with a probability of success. Secondly, an Interlocutory Injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an Application on the balance of convenience”The court found that the Claimants have a prima facie case with a probability of success, and that if the injunction is not given, they would suffer irreparable loss. The balance of convenience therefore shifted on the side of the Claimants.The question, therefore, is whether the Applicants herein have convinced this Tribunal that the orders were granted erroneously and therefore there is need to set them aside.Order 45(1) of the Civil Procedure Rules sets out the requirements for an Application for review as follows:“Any person considering himself aggrieveda)By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb)by a decree or order from which no appeal is allowed and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed, or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay”.The Applicant in their submissions aver that the evidence of the bulk SMS service provider had been inadvertently been omitted. Indeed, the Applicants submitted a copy of SMS Messages sent to the Claimants confirming that they are guarantors. In addition, a letter written by the Competition Authority, the 4th respondent, to the 3rd Respondent confirming that the messages have caused a lot of unrest in the office. The 4th Respondents report that there was a meeting between the claimants and the 2nd Respondent but at no point do they report that the Claimants deny being guarantors. It is the position of the Claimants, according to the 4th Respondent’s letter, that the loan they guaranteed the 1st Respondent was to be short-term loan to be cleared in lumpsum because the 1st Respondent was a business person.

7. The bulk SMS service and the letter from the Competition Authority, the 4th Respondent herein, was not opposed by the Claimants. The temporary Injunction was granted by the Tribunal on the basis that the Claimants might not have guaranteed the 1st Respondent. However, we are inclined to believe that the new evidence of the bulk SMS service from the 3rd Respondent to the claimant is material. The 4th Respondent contends that this evidence had been excluded and was adduced through the Supporting Affidavit of one Mr. Jackson Kiio. There is a clear indication that the said SMS were received by the Claimants herein, owing to the letter written to the 3rd Respondent by the 4th Respondent, the employer of the Claimants through a letter dated 27th November 2017. And indeed in the said letter, the Claimants’ employer confirms that the Claimants guaranteed the 1st Respondent through introduction and goodwill of his cousin, the 2nd Respondent, Terence Bavon Minishi. We are therefore inclined to allow prayer 3 noting also that should the Claimants succeed in their main suit, Prayer 1 of the Statement of Claim, is a prayer for a refund of all the monies deducted from the Claimants by the 3rd Respondent in relation to the 1st Respondent’s loan.

8. On prayer 4, we are of the view that this Tribunal exhaustively pronounced itself in its ruling delivered on 4th March 2021 in the determination of the sub-judice claim on the Claimant’s application dated 3rd December, 2019. The Applicants have not shown any new and important matter or evidence which the Applicants were not aware of in the initial application to warrant grant of this prayer.

9. The upshot of the foregoing is that we make the following orders to dispose of the Notice of Motion application dated 27th May, 2021. a.Prayer 3 is allowed and accordingly, the injunctive orders made on 4th March 2021 are hereby set aside.b.Prayer 4 fails and the same is dismissed.c.The Claimants to bear the costs of this Application.

Ruling signed,

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023